He's asked for a rehearing after a bare majority of the Texas Court of Criminal Appeals threw out conspiracy charges against Tom DeLay and two other defendants.
(crossposted in part in comments at Burnt Orange Report)
Despite DeLay's loud declarations of victory, Earle's request for rehearing and reconsideration is not a vain one. The Court of Crims - the highest court for criminal cases in Texas' split system, has been known to change its mind. And in this ruling, says the author of the minority's dissent, they've created bad public policy and defied common sense in letting DeLay rely on a suspect ruling in a 30-year old drug case to skate around conspiracy charges.
Earle called the majority's reasoning "tortured."
Justice Cathy Cochran, writing the dissent in which three other justices joined, said "common sense" dictates that a conspiracy to commit a felony is a crime, no matter where in the law books the felony appears.
DeLay and his alleged co-conspirators relied on a couple of 30-year-old court decisions in arguing that an Election Code felony is different from a Penal Code felony, and conspiracy didn’t apply.
Countered Justice Cochran:
Are some felonies more felonious than other felonies? More deserving of being deterred and punished before their actual commission? Or are felonies defined in the Penal Code especially heinous "felonies-on-steroids," while their brethren defined outside the Penal Code are puny, half-pint felonies unworthy of being the subject of the crime of conspiracy? I do not think so.
Cochran, a frequent lecturer on the law, said also
Is there any common-sense reason to think that the crime of conspiracy does or should apply only to offenses defined within the Penal Code itself? If the purpose of the conspiracy law is to deter and punish those who agree to commit a serious crime and take overt steps to accomplish that crime, is there any reason to separate out serious offenses defined within the Penal Code from serious offenses defined outside the Penal Code and declare that one can be prosecuted for conspiring to commit Penal Code felonies but not extra-Penal Code felonies?
Carrying the majority's agreement with DeLay’s defense to its logical conclusion, she wrote:
Take, for example, Mr. Big, a drug cartel kingpin who never sullies his own hands with the ten kilos of cocaine that he orders flown across the border into Texas. Instead, he conspires with his henchmen to deliver the goods while he is happily ensconced in his River Oaks mansion. Did the 1974 Penal Code really intend that he be immune from prosecution for the Penal Code offense of conspiracy to deliver cocaine merely because the offense of delivery of cocaine was defined outside the Penal Code?
Her full dissent - and it’s a beaut - is here:
http://tinyurl.com/...
As I said, the high court for criminal matters has been known to change its mind. In fact, Austin's intermediate Third Court of Appeals practically invited it to do so when it sent the case over, saying the 30-year-old drug case named "Baker" on which DeLay and his pals relied is suspect on its face:
Baker appears to be based on questionable reasoning and is arguably in conflict with the history of the criminal conspiracy offense in Texas as well as the growing legislative trend to propagate felony offenses throughout the various statutory codes. The court of criminal appeals may want to revisit its opinion in Baker.
DeLay's posturing about his "victory" is nothing new and, in the end, as meaningless as his mugshot grin. Here’s hoping that at least one of the five Texas Court of Criminal Appeals justices in the majority will reconsider and not allow bad law and bad public policy to stand just so DeLay can escape a trial for conspiracy.